Immigration Law Advisor, Vol 5. No. 3 - Department of Justice

Apr 1, 2011 - Inconsistencies arising in an asylum application remain a well- recognized reason ...... is no “federal criminal statute making unlawful presence.
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U.S. Department of Justice Executive Office for Immigration Review

http://eoir-vll/lib_index.html Published since 2007

Immigration Law Advisor March 2011

A Legal Publication of the Executive Office for Immigration Review Vol. 5 No. 3

In this issue... Page 1: Feature Article:

Trust, but Verify: Document Similiarities and Credibility Findings in Immigration Proceedings by Jonathan Calkins and Elizabeth Donnelly

Trust, but Verify . . .

Page 5: Federal Court Activity

Introduction

Page 6: Life Does Not Always Imitate

Television: The “Exclusionary Rule” . . .

Page 11: BIA Precedent Decisions Page 13: Regulatory Update

The Immigration Law Advisor is a professional newsletter of the Executive Office for Immigration Review (“EOIR”) that is intended solely as an educational resource to disseminate information on developments in immigration law pertinent to the Immigration Courts and the Board of Immigration Appeals. Any views expressed are those of the authors and do not represent the positions of EOIR, the Department of Justice, the Attorney General, or the U.S. Government. This publication contains no legal advice and may not be construed to create or limit any rights enforceable by law. EOIR will not answer questions concerning the publication’s content or how it may pertain to any individual case. Guidance concerning proceedings before EOIR may be found in the Immigration Court Practice Manual and/or the Board of Immigration Appeals Practice Manual.

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nconsistencies arising in an asylum application remain a wellrecognized reason for questioning an asylum seeker’s truthfulness, particularly in the wake of the REAL ID Act of 2005. So routine are denials based on inconsistent statements that the circuit courts of appeals affirmed several on this basis in the first few weeks of 2011 alone—typically through summary unpublished dispositions. E.g., Ademi v. Holder, No. 094379-ag, 2011 WL 9823, at *1 (2d Cir. Jan. 4, 2011); Seydy v. Holder, No. 09-3822, 2011 WL 111735, at *1-2 (6th Cir. Jan. 13, 2011); Lin v. U.S. Att’y Gen., No. 10-12962, 2011 WL 9359, at *3 (11th Cir. Jan 3, 2011). A more difficult question is if and to what extent an Immigration Judge may rely on similarities—either between documents presented in the same proceeding or between claims—to find an applicant not credible. While neither the Act nor the regulations specifically address similarities as a basis for an adverse credibility finding, the REAL ID Act authorizes Immigration Judges to consider “other relevant factors” in determining credibility. One such factor may be intra- and inter-proceeding similarities. Nonetheless, under the right circumstances, suspicious similarities may support an adverse credibility finding, in whole or in part, for related reasons. In a handful of published opinions and a significant number of unpublished dispositions, several circuit courts have confronted a range of issues presented by Immigration Judges’ reliance on document similarities. Two main types of similarities—intra-proceeding and inter-proceeding similarities—have been identified in these cases. This article will discuss each in turn.

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as a whole. See, e.g., Oudit v. Holder, No. 09-3425-ag, 2010 WL 4997429, at *2 (2d Cir. Dec. 7, 2010); Xia Pan The term “intra-proceeding similarities” refers to Dong v. Holder, 339 F. App’x 11, 13 (2d Cir. 2009). In similarities appearing in evidence presented in a single either scenario, however, the Immigration Judge has often case. Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, articulated other reasons for finding the applicant not 519 (2d Cir. 2007). Similar language, phrasing, structure, credible or rejecting the corroborating evidence. Intraand even grammatical or spelling errors in statements proceeding similarities usually do not constitute the only allegedly provided by different individuals in support suspicious aspec